Support

A cookie is a piece of data stored by your browser or device that helps websites like this one recognize return visitors. We use cookies to give you the best experience on BNA.com. Some cookies are also necessary for the technical operation of our website. If you continue browsing, you agree to this site’s use of cookies.

Marketing Services

Bloomberg Next marketing services allow clients to elevate their brands and extend their reach through our established and trusted expertise, enhanced with engaging event production, appealing design, and compelling messaging.

The EPA removed the civil penalty shield, known as an affirmative defense, from its
Mercury and Air Toxics Standards for power plants in an April rule that made “technical
corrections” to the standards. The agency is in the midst of removing affirmative
defense language from various air pollution rules in response to a 2014 federal appeals
court decision that found the inclusion of a similar civil penalty shield in hazardous
air pollution standards for cement kilns to be outside the scope of the agency's Clean
Air Act authority (
Nat. Res. Def. Council v. EPA
, 749 F.3d 1055, 78 ERC 1369, 2014 BL 108218 (D.C. Cir.
2014)).

The Utility Air Regulatory Group, which filed one of the three active lawsuits over
the technical corrections rule, said in a July 8
court filing
that it intends to ask the U.S. Court of Appeals for the District of Columbia Circuit
to review whether the EPA acted illegally in removing the affirmative defense for
malfunctions. Specifically, the trade association raised the question of whether the
EPA acted in an arbitrary and capricious manner when it removed the civil penalty
shield without otherwise taking malfunctions into account in the standards setting
process.

The Mercury and Air Toxics Standards, issued in 2012, required the utility industry
to spend billions on pollution controls to reduce emissions of mercury and other hazardous
air pollutants.

Refuse, Startup Provisions Challenged

The technical corrections rule (RIN:2060-AS41) also is the subject of litigation from
ARIPPA, a trade association that represents coal refuse power plants. In a separate
July 8
filing
, ARIPPA raised a number of legal questions related to the EPA's decision to revise
the regulatory definition of the term “coal refuse” under the power plant mercury
standards.

ARIPPA said it will ask the court to consider whether the EPA acted illegally when
it characterized the revised definition as a clarification, even though the new definition
will have “material substantive consequences” on the scope of the power plant standards.
The power plant trade association argued in 2015 comments submitted to the agency
that the revised definition of coal refuse should be considered a substantive regulatory
change that would warrant a reevaluation of emissions limits established under the
mercury rule to determine if the limits would apply to additional pollution sources.

Work practice standards that apply during power plant startup are the focus of litigation
brought by a coalition of environmental organizations that includes the Sierra Club.
The environmental petitioners, in a July 7
filing
, questioned whether the agency failed to meet threshold requirements of Section 112(h)
of the Clean Air Act for establishing work practice standards for facilities to meet
in the place of numerical emissions limits.

The environmental coalition also suggested that the EPA may have violated the Clean
Air Act by establishing startup work practices that are not consistent with the provisions
of Section 112(d) of the Clean Air Act.

Temporary Halt Requested

The technical corrections rule marked the third time the EPA revised the Mercury and
Air Toxics Standards since they were issued. The two prior revisions to the rule also
are under review by the D.C. Circuit and are currently being held in abeyance
(
Chesapeake Bay Found. v. EPA, D.C. Cir., No. 13-1200, report filed
6/17/16
;
Util. Air Regulatory Grp. v. EPA, No. 15-1013, D.C. Cir., motion filed
6/15/16
).

The parties involved in litigation over the technical corrections rule, including
the EPA, filed a July 8
motion
to hold the consolidated cases in abeyance for 60 days.

The parties filed the request in order to obtain additional time to consider how litigation
over the technical corrections rule should proceed, whether some of the issues at
hand can be consolidated with the other pending cases and whether some issues can
be resolved through alternative means.

The Utility Air Regulatory Group is represented by a team of attorneys with Hunton
& Williams LLP, led by Lauren Freeman. ARIPPA is represented by Bart Cassidy and Katherine
Vaccaro, partners with Manko, Gold, Katcher & Fox LLP. The environmental petitioners
are represented by Patton Dycus and Eric Schaeffer with the Environmental Integrity
Project, as well as Earthjustice attorneys James Pew and Neil Gormley.

To contact the reporter on this story: Patrick Ambrosio in Washington at
pambrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at
lpearl@bna.com

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)